Abbott v Brefni Corporate Pty Ltd
[2025] NSWPICMP 491
•9 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Abbott v Brefni Corporate Pty Ltd [2025] NSWPICMP 491 |
| APPELLANT: | Greg Abbott |
| RESPONDENT: | Brefni Corporate Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Gaius Whiffin |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 9 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal against Medical Assessor’s (MA) assessment of impairment in relation to psychiatric and psychological disorders; appellant alleged that error in history taken by MA concerning a person other than the claimant in the initial MAC infected the entire assessment process; later attempt by MA to correct error in subsequent certificate; demonstrable error found; failure to explain path of reasoning in sufficient detail; assessment where there is more than a mere difference of opinion on a matter about which reasonable minds may differ; failure to consider relevant and significant material; New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Mahenthirarasa v State Rail Authority of New South Wales, Wingfoot Australia Partners Pty Ltd v Kocak, Campbelltown City Council v Vegan, Queanbeyan Racing Club Ltd v Burton, Merza v Registrar of the Workers Compensation Commission and Anor, Ferguson v State of New South Wales, Parker v Select Civil Pty Limited, Vitaz v Westform (NSW) Pty Ltd, Western Sydney Local Health District v Chan, Prasad v Workers Compensation Commission, Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor, Ballas v Department of Education (NSW), and Coca-Cola Europacific Partners API Pty Ltd v Pombinho considered; Held – having found error, the Appeal Panel determined a further medical examination of the appellant was required, which provided different assessments to the MA; the Appeal Panel adopted those assessments; MAC revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 February 2025, Greg Abbott (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Ankur Gupta (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 14 February 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate has been satisfied (in accordance with her decision dated 25 March 2025) that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment - limited to the grounds of appeal on which the Appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) and Procedural Direction PIC7 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An appeal panel determines its own procedures in accordance with cl 128(1) of the Rules.
The necessary assessment of permanent impairment of the appellant is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (the Guidelines), as well as the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). The psychiatric impairment rating scale categories (PIRS categories) to be utilised in the necessary assessment are outlined at cls 11.11-11.12 and at Tables 11.1-11.6 of the Guidelines.
RELEVANT FACTUAL BACKGROUND
The appellant was employed as an estimating manager by Brefni Corporate Pty Ltd (the respondent) from 2015 until he last worked for it in late 2019. He alleges that during his employment with it, his workload was excessive and he was pressured into working excessive hours. He was provided with a lack of support by the respondent’s management, and inter-personal conflict issues emerged with that management.
As a result, he developed a psychological injury. The deemed date for the injury has been agreed between the parties as being 2 December 2019.
The appellant claimed compensation from the respondent in relation to the injury, and the respondent has accepted that it is liable to pay compensation in this regard, in accordance with the provisions in the Workers Compensation Act 1987 (the 1987 Act). It has therefore variously paid him weekly benefits compensation, as well as expenses in accordance with s 60 of the 1987 Act.
The appellant then claimed lump sum compensation from the respondent pursuant to s 66 of the 1987 Act. He made his formal claim by letters from his solicitors to both the respondent and its insurer dated 24 May 2024. He relied upon a report from Dr Teoh dated 12 March 2024 in this regard, who assessed him with 22% permanent impairment from the injury.
The respondent arranged for Dr Modem to assess the appellant, and based upon that doctor’s assessment, its solicitors wrote to the appellant’s solicitors on 19 September 2024, offering to settle his claim pursuant to s 66 of the 1987 Act on the basis that he had sustained 19% permanent impairment from the injury. That offer was not accepted by the appellant.
As a result, by an Application to Resolve a Dispute (ARD) dated 20 November 2024 and filed with the Personal Injury Commission (Commission), the appellant claims compensation pursuant to s 66 of the 1987 Act in relation to the injury.
As the respondent had accepted liability for the appellant’s injury, the Commission referred the medical dispute regarding the extent of the appellant’s permanent impairment directly to the Medical Assessor. The referral in this regard was dated 13 December 2024.
The Medical Assessor issued an initial Medical Assessment Certificate dated 3 February 2025 (initial MAC).
The respondent’s solicitors then emailed the Commission on 12 February 2025, as follows:
“We refer to the Medical Assessment Certificate of Dr A Gupta dated 3 February 2025.
We note on page 5, under 10(c), Dr Gupta refers to the incorrect person as the claimant referencing the name of ‘Mr Tremelling’ and also made reference to a history completely unrelated to the claimant he examines. Dr Gupta referred to the claimant’s wife being deceased however we note Mr Abbot’s wife was present during the examination noted at the outset of the report.
It would seem Dr Gupta then carried over the history to his assessment on pages 6-8 and specifically as to employability where assessed a class 3.
We kindly request some clarification as to the history recorded made in error and then carried over into assessment by Dr Gupta.”
The Medical Assessor subsequently issued the MAC, which is identical to the initial MAC, except for a different answer being provided under paragraph 10(c) of it.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the Medical Assessor had fallen into error in a number of respects when assessing the degree of the appellant’s permanent impairment.
The Appeal Panel also formed the view that it was not itself able to determine the degree of the appellant’s permanent impairment without a further medical examination of him. It therefore exercised its power in accordance with s 324 of the 1998 Act to require the appellant to attend an examination with Dr Douglas Andrews from the Appeal Panel on 28 May 2025.
The Appeal Panel in this regard followed the two-stage process explained by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 (at [33]):
“However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.”
A preliminary review certificate was issued on 23 April 2025. It referred to this authority and informed the parties of the medical examination on 28 May 2025. It also advised:
“It is appropriate that the full reasons for the Panel finding error are incorporated in the final Statement of Reasons for Decision of the Appeal Panel in relation to a Medical Dispute, to be issued after the Panel’s further assessment of the appellant’s permanent impairment.
It is sufficient at this stage to advise the Panel’s opinion that the Medical Assessor erred in:
(a)failing to explain his actual path of reasoning in sufficient detail – see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43;
(b)providing assessments in relation to which there is more than a mere difference of opinion on a subject about which reasonable minds may differ – see Ferguson v State of New South Wales [2017] NSWSC 887;
(c) failing to consider relevant and significant material – see Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor [2017] NSWSC 453, and
(d)referring to a history relating to a different worker to the appellant.”
The appellant attended the medical examination with Dr Douglas Andrews ordered.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment, and has taken them into account in making this determination:
(a) the ARD and its attachments, and
(b) the respondent’s Reply (Reply) and its attachments.
Medical Assessment Certificate
The parts of the MAC that are relevant to the Appeal are set out in the body of this decision. It is unnecessary however to refer to the MAC in more detail, given the specific grounds of appeal on which the Appeal is made.
The Medical Assessor takes an uncontroversial history of the onset of, the causes of, and the treatment for the appellant’s psychological injury.
In relation to the appellant’s “present symptoms”, the Medical Assessor only records the following:
“Mr Abbott says that he is unable to accept that he is suffering despite not being at fault. He says he is facing financial stress and will need to downsize his house. He says that his mood is still ‘sad and angry’, but medication has helped to take the edge off. He says that he has to take ‘all these chemicals’ in terms of medication. He picks at his feet and the nail beds until they bleed. He says that his sleep is impaired. He describes early insomnia and waking up four to five times during the night and finding it difficult to get back to sleep. He wakes up worrying about his financial situation and future. He did not describe nightmares. He wears a mouth guard to prevent the grinding of his teeth and usually sleeps in a different bedroom so as not to disturb his wife, who has to go to work. He says that his self-esteem and confidence are ‘non-existent’. He does not experience panic attacks. He says that his motivation is ‘pretty low’. His diabetes is well controlled, and he says that he checks his sugar levels every week, and they have been ‘fairly stable’. He says that he eats a ‘fairly robust diet’ which helps. He feels tired all the time. He says that he is currently drinking ten units of alcohol per week. He says that he had started drinking up to four litres of wine every three days when he was working but has been working to reduce it. He denies any drug use. He says that he feels ‘very bleak’ about his future. He denies any suicidal ideation. He is hopeful that he would get ‘high enough’ impairment rating that he would be able to pay on his home loan.”
In relation to the appellant’s “social activities/ADL”, the Medical Assessor only records the following:
“Mr Abbott says that he is unable to concentrate on crosswords and books. He reads books which he has read before. He says that he spends less than thirty minutes reading during the day. He spends his time scratching his nailbeds with a movie on. He tries to do the jobs which his wife leaves him to do. Mr Abbott says that he takes his medication regularly but says that it is ‘usually on prompting’ from his wife as he ‘forgets’. He was aware of the permanent impairment ratings provided by two psychiatrists. He says that he is unable to return to his profession. He says that the ‘stress’ and the fact that there is no opportunity to find a job. His wife says that she leaves him a list of jobs to do but he does not manage that. These includes things like emptying the dishwasher or checking the emails. Their son visits to ensure that he eats. She says that there is difficulty in their marriage, but they do not argue. She says that his concentration levels are ‘terrible’ and he would not be able to do the job that he used to. He says that he is fearful to go out as two of his ex-colleagues live locally. He can start cleaning the house but then leave it halfway. He says that he has showered ten to twelve days in the last two to three weeks. He cleans his teeth daily but only because his wife prompts him to. He does hoover around the house and says that he walks around his property. He goes out shopping with his wife but does not go to the local post office or the local shops on his own. He says that everything in his local area is linked to his place of work. He says that he could drive 25 kilometres away to shop if he had to. He drives to his psychiatrist’s office in Campbelltown on his own. He says that he has not been to a pub for over twelve months. He went out with his wife to a wedding last Saturday. They attended the wedding, but he did not speak with anyone and did not leave the table. He managed to stay there all night. The wedding was over an hour away. He drove there and his wife drove back. They travelled to Mackay five months ago for three weeks and visited Airlie Beach on their way back.
He says that his previous occupation needs a high degree of concentration which he does not have. He has also been out of the industry for five years which impacts his ability to work in his own vocation. He says that he can potentially work in some other jobs but would not be able to talk with people and would be fearful of anyone from his previous place of work walked in.”
The Medical Assessor does not otherwise record psychological symptoms of the appellant’s, and the MAC is silent as to whether any mental state examination was conducted.
The Medical Assessor diagnoses the appellant with a persistent depressive disorder with anxious distress. The appellant’s permanent impairment is assessed at 11%, and the assessment is explained by reference to the PIRS categories. The Medical Assessor does not make any deduction from the assessment to take into account any previous injury or pre-existing condition or abnormality.
Importantly, in the initial MAC, the Medical Assessor records the following under paragraph 10(c) in it:
“Other reports have noted his work capacity to be totally impaired. However, it is consistently documented that he has been considering returning to work in a school and was encouraged by his treating psychiatrist. He had even considered starting his own daycare business just before his wife passed away. There is no reason for Mr Tremelling to become totally incapacitated for work on account of his reported symptoms. Based on his symptom burden and functional capacity, it is my opinion that he retains partial capacity to work”.
As conceded by the respondent (see paragraph 14 above), this recording does not refer to the appellant. Interestingly, the recording is made under the heading:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs”.
In the MAC, the Medical Assessor totally changes the relevant paragraph, so that it reads:
“Drs Teoh and Modem have noted his work capacity to be totally impaired. However, Mr Abbot describes reduced ability to concentrate as his primary barrier to working. Concentration is rated separately on the PIRS. The rating on employability is for moderate impairment in my opinion.”
The Medical Assessor does not otherwise change the initial MAC at all. He also does not explain the origin of the recording under paragraph 10(c) in the initial MAC, or how and why in the circumstances it came to appear there.
Further medical examination
As noted at paragraphs 18-21 above, Dr Douglas Andrews from the Appeal Panel conducted an examination of the appellant on 28 May 2025. He has now reported to the Appeal Panel, and his full report follows at paragraph 93 below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant refers to Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 (Mahenthirarasa) and submits that the Medical Assessor’s recording of a history in relation to a person other than the appellant (see paragraphs 29-31 above) is the most obvious form of a demonstrable error as it is an error that is “readily apparent”.
The MAC includes the history of a person other than the appellant, thereby “confusing and mashing” the histories of that person and the appellant. The appellant submits:
“It is not possible from reading the Certificate and reasons to distill with certainty which of these errors the Assessor made or if any error affected the Assessor’s reasoning process…Whilst the Commission asked the Medical Assessor to amend his report accordingly, the Appellant Worker can be none the wiser as to the effect, if any, that this played in him forming an opinion in his original report and thus his subsequent report after its removal…It cannot be assumed that the Medical Assessor has clear recollection of whether that formed part of his thinking several weeks, and no doubt many patients, after the original assessment occurred. To simply delete it and maintain his opinion is an error.”
The appellant therefore submits that he should be assessed fresh by a different assessor from the Appeal Panel, without reference to the MAC. This is a request that all PIRS categories be re-assessed by the Panel.
However, the appellant also specifically complains about the assessments in the MAC regarding:
(a) social and recreational activities – ability to travel should not have been taken into account, shopping should not have been taken into account, and his ability (or lack of ability) to attend social events without a support person should have been clarified;
(b) social functioning – failure to take into account marital separations, loss of friendships, and distancing from family members, and
(c) employability – there are many other factors other than his concentration issues affecting his ability to work, such as his personal hygiene, his fear of leaving his home, and his inability to undertake a simple list of household chores.
In reply, the respondent submits that in the MAC, the Medical Assessor corrected the history recorded in the initial MAC. The MAC therefore contains “the correct history of the appellant worker, and the assessment is neither wrong nor the appellant’s worker’s condition has changed”. The initial MAC is not the subject of this Appeal and any error in it is has since been rectified. Although the initial MAC may have contained a demonstrable error, once it was corrected, the MAC does not contain such an error. An incorrect history obtained by the Medical Assessor, which is later corrected, is not a ground of appeal. In any case:
“The respondent submits although there was an incorrect history mentioned it was only in relation to considerations as to the MA’s opinion differing from the medical opinions and findings submitted by the parties.”
The respondent otherwise refers to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot) and submits that the MAC explains the Medical Assessor’s actual path of reasoning in sufficient detail.
In relation to the assessment regarding social and recreational activities in the MAC, the respondent submits that the appellant’s complaints only address a difference of opinion, and not the application of incorrect criteria. The Medical Assessor appropriately “considered his clinical examination and the self-report by the appellant in the context of the other evidence before him” (especially the appellant’s ability to attend a wedding and go on holiday), and did not need to obtain further clarification from the appellant.
In relation to the assessment regarding social functioning, the respondent submits “the appellant is attempting to cavil with the history taken by the MA as he attempts to again raise the evidence provided by the appellant worker’s statement and the examination on the day should be given less weight compared to contextual factors”. The respondent submits it is clear that the appellant still has strong relationships with his wife, evidenced by their lack of arguments, by the fact that the appellant slept in a different room so as not to disturb his wife, and by the assistance provided to the appellant by his wife (reminding him to take medication, reminding him in relation to self-care, and organising chores for him).
In relation to the assessment regarding employability, the respondent submits that the Medical Assessor exercised his clinical judgement and provided an opinion, with appropriate and sufficient reasoning, as to why the appellant was able to work up to 20 hours per week.
FINDINGS AND REASONS
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The procedures on appeal are contained in s 328 of the 1998 Act. The Appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the Appeal is made – that is those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
In effect, the appellant argues that the error by the Medical Assessor in the recording of a history in relation to a person other than the appellant (see paragraphs 29-31 above) in the initial MAC infects his entire assessment process and results in an inability to trust any part of that assessment process at all.
The Appeal Panel accepts the appellant’s position in this regard, especially as the correcting of this recording error which was made in the MAC did not lead to any revision at all in the Medical Assessor’s PIRS categories assessments. Those assessments rely on the information in the body of a medical assessment certificate, and it can therefore be inferred that when the information in the body of a medical assessment certificate changes as significantly as it did here regarding correcting the recording of a history in relation to a person other than the appellant, there will be some revision (or at least an explanation as to why no revision is necessary) in the relevant PIRS categories assessments.
The Medical Assessor does not explain how or why the recording of a history in relation to a person other than the appellant appeared in the initial MAC. He does not for example refer to a clerical or other administrative error, which might make it easier for the Appeal Panel to accept that there was no revision necessary in his PIRS categories assessments. Instead, the amending of the initial MAC into the MAC is a ‘cut and paste’ exercise without explanation.
The respondent submits (see paragraph 38 above) that the recording of a history in relation to a person other than the appellant in the initial MAC is not a ground of appeal because either:
(a) the recording was corrected in the MAC;
(b) the recording was made under a heading requesting the Medical Assessor to comment regarding other medical opinions and findings, or
(c) the initial MAC that contained the incorrect recording is not the subject of the Appeal.
The Appeal Panel rejects these submissions. Having regard to the history of the medical assessment process in relation to the appellant, it is not in the opinion of the Appeal Panel possible to ignore such a significant incorrect recording of the appellant’s history simply because it was corrected (without explanation or any further revision) or because it was contained within a section of the initial MAC with a heading that did not specifically request information from the appellant to be provided. It is also not in the opinion of the Appeal Panel possible to separate the initial MAC from the MAC when considering error in the medical assessment process. Both documents require reading together in this regard.
The Appeal Panel agrees with the appellant that this incorrect recording of his history by confusing him with another person requires that he should be assessed fresh by a different assessor from the Appeal Panel (without reference to the MAC) and that all PIRS categories in this regard should form part of that fresh assessment. The Appeal Panel views the incorrect recording to be of such significance as to cause real doubt in relation to all the PIRS categories assessments of the Medical Assessor’s.
The Appeal Panel also formally finds this incorrect recording to be a demonstrable error. In this regard, the Appeal Panel reads the initial MAC and the MAC together. The respondent (see paragraph 38 above) seems to concede that there was a demonstrable error in the initial MAC, but argues that there was not a demonstrable error in the MAC. Having regard to the lack of explanation by the Medical Assessor as to how and why there was an incorrect recording in the initial MAC, the Appeal Panel sees the need to examine the initial MAC (and the incorrect recording in it) as well as the MAC to determine whether there was a demonstrable error in the MAC. Just because the MAC conceals the incorrect recording which was in the initial MAC does not in the opinion of the Appeal Panel mean that the initial MAC is not to be considered, especially when the only reason why the MAC was needed was because of the incorrect recording in the initial MAC.
Considering the MAC and the initial MAC together, the Appeal Panel considers the Medical Assessor’s error in the recording of a history in relation to a person other than the appellant to be readily apparent from an examination of them together, and thus a demonstrable error.
In this regard, the Appeal Panel refers to the decision of Hoeben SCJ in Merza v Registrar of the Workers Compensation Commission and Anor [2006] NSWSC 939 (Merza) (at [39]):
“I do not propose to, nor is it necessary, that I define what is ‘demonstrable error’ for the purposes of s 327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that ‘demonstrable error’ is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment.”
Merza was referred to with approval (and potentially expanded upon) in Mahenthirarasa, where Basten JA stated (at [59]):
“The concept of ‘demonstrable error’ is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error ‘on the face of the record’ for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word ‘demonstrable’ does not in any event import such a constraint.”
In accordance with Mahenthirarasa, the error of the Medical Assessor would even meet the narrowest interpretation of what a demonstrable error is, as described by Basten JA.
The Appeal Panel also now addresses the specific complaints made by the appellant regarding the Medical Assessor’s assessments in relation to the PIRS categories of social and recreational activities, social functioning, and employability – see paragraph 37 above.
In Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson) (at [23]-[24]), Campbell J stated:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.
The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker), Harrison AsJ relied upon Ferguson where an appeal panel had determined that a medical assessor “had erred in assessing Class 3 [relevant to the PIRS category of self care and personal hygiene] because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence”. However, Harrison AsJ found (at [71]):
“The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error.”
Error will not be found in accordance with Parker and Ferguson in relation to a specific assessment regarding one of the PIRS categories if the relevant assessment of the medical assessor merely involves a difference of opinion about which reasonable minds may differ.
A medical assessor also has to however explain the path of reasoning taken in order to arrive at an assessment in sufficient detail, so that speculation is not involved in determining whether the assessment involves merely a disagreement or a difference of opinion, or whether it involves an error.
In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), Basten JA (at [34]) stated:
“Questions as to the adequacy of the reasons given by an approved medical specialist are different in kind. Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category.”
A medical assessor’s reasons for an assessment need to be such, so that an appellant and a respondent, as well as an appeal panel, can comprehend why an appellant’s permanent impairment is assessed at a certain level. The reasons need to explain the actual path of reasoning followed by the medical assessor. In Western Sydney Local Health District v Chan [2015] NSWSC 1968, Adams J (at [13]) saw the role of the Medical Assessor as analogous to the role of the Victorian Medical Panel discussed by the High Court in Wingfoot. At ([55]) in Wingfoot, the plurality of the High Court stated as follows:
“The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”
Further, a medical assessor will have erred if ‘relevant and significant material’ is not considered. Although a medical assessor does not have to refer in a medical assessment certificate to “every matter or thing that is germane or critical to an administrative decision” (per Harrison SCJ in Prasad v Workers Compensation Commission [2010] NSWSC 418), it is an error for a Medical Assessor not to consider ‘relevant and significant material’. As Adams SCJ found in Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor [2017] NSWSC 453 (at [14]):
“Given the significance of the Medical Assessment Certificate by the Appointed Medical Specialist in the scheme of the Act, which is designed amongst other things to avoid hearings and to dispose of applications by non-participatory decision making, a failure to consider relevant and significant material provided by one of the parties must be regarded as a significant error. Indeed, it seems to me that it amounts to a denial of natural justice.”
Social and recreational activities
In relation to this PIRS category, the Guidelines describe the following in Table 11.2:
“Class 2 - Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 - Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The Medical Assessor placed the appellant in Class 2 and gave reasons:
“As described in the main body of the report, there is mild impairment. He tends to stay at home and is less social than he once was. He can go to local shops with his wife and is also able to visit shops 25 kilometers away on his own. He recently attended a wedding but did not interact much with others. He has taken a holiday to Mackay and Airlie Beach.”
The Medical Assessor records (see paragraph 26 above) that the appellant is fearful of leaving his house. He does not shop locally on his own. He had not been to a pub for over 12 months. He recently attended a wedding with his wife but “did not speak with anyone and did not leave the table”. He holidayed with his wife to Mackay five months ago. He is unable now to concentrate on crosswords or read for more than 30 minutes at a time.
In the appellant’s 23 October 2024 statement (found at page 1 of the ARD), he says:
“In relation to my social and recreational activities I simply do not leave the house. The last social event that I attended would have been in January of this year. I simply avoid any form of social interaction and stay within my home environment as this is where I feel safest and am now most comfortable.”
Dr Teoh’s 12 March 2024 report (found at page 43 of the ARD) also records that the appellant “hardly leaves his house on his own” and avoids shopping. He has become socially withdrawn.
Dr Modem’s 19 July 2024 report (found at page 46 of the Reply) is more detailed. The doctor records that the appellant spends most of his time at home and lacks “interest, motivation and drive to participate in pleasurable activities”. His last social outing was at Christmas (almost seven months previously) which was overwhelming for him. He had no local friends but spoke with a friend from Melbourne every four to five weeks. The doctor records his discomfort and unease in social settings, and opines that his “deliberate choice to abstain from attending social gatherings for a considerable period reflects a preference for seclusion and avoidance of social stimuli”. The doctor justifies his placement of the applicant in Class 3:
“Mr Abbott demonstrates significant difficulties in engaging in social activities and maintaining social relationships. His social withdrawal is more pronounced than what would be seen in Class 2, indicating moderate limitations…His lifestyle pattern of seclusion and avoidance of social stimuli suggests that his social relationships and sense of community involvement are significantly affected, impacting his overall mental well-being”
The Appeal Panel notes that the specific reasons for the Medical Assessor’s assessment only refer to the three activities of shopping with his wife (generally not a social or recreational activity), attending a wedding with his wife, and holidaying with his wife. There is no evidence before the Medical Assessor that the appellant has attended social events without a support person (in accordance with a Class 2 description). The evidence is that he rarely goes to social events, does not go without a support person, and does not actively involve himself in those events (in accordance with a Class 3 description).
In those circumstances, the Appeal Panel considers the reasoning of the Medical Assessor to be vague, partly irrelevant, and lacking in detail. The reasons do not sufficiently engage with the evidence. The Appeal Panel cannot ascertain the Medical Assessor’s actual path of reasoning to his assessment pursuant to Class 2 when all the evidence suggests an appropriate Class 3 assessment. In those circumstances also, the Appeal Panel does not find the assessment of the Medical Assessor to be merely a difference of opinion about which reasonable minds may differ. The Appeal Panel therefore finds error in this regard.
Social functioning
In relation to this PIRS category, the Guidelines describe the following in Table 11.4:
“Class 1 - No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2 - Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The Medical Assessor placed the appellant in Class 1 and gave reasons:
“As described in the main body of the report, there is a minor deficit attributable to normal variation in the general population. His relationship with his wife is maintained despite some difficulties. She was present during the assessment and they appeared to get on well. She was supportive of him throughout the assessment. He gets on well with his son as well.”
The extent of the information obtained by the Medical Assessor in relation to this category (see paragraph 26 above) is:
(a) the appellant’s wife (rather than the appellant directly) tells the Medical Assessor that “there is difficulty in their marriage, but they do not argue”;
(b) the appellant tells the Medical Assessor that his wife leaves lists of domestic tasks for him to do at home, his wife prompts him to take his medication, his wife prompts him to clean his teeth, he goes out shopping with his wife locally, he and his wife recently attended a wedding together, and he and his wife holidayed in Mackay five months ago;
(c) information is obtained that the appellant’s son visits him to ensure that he eats meals, and
(d) no other information is obtained in relation to other friends or family members of the appellant’s.
In the appellant’s 23 October 2024 statement, he says:
“In terms of my social functioning my marriage has been placed under great strain. There have been numerous separations within the marriage since the injury occurred. Whilst we are still married we effectively live separately under the one roof, sleeping in separate bedrooms. Levels of intimacy levels have declined since the injury and have been absent for the last 12 months or so. I have little to no contact with family and generally avoid interaction where I can. As a result of this my immediate family have become distant and I have lost friends who no longer bother contacting me as I simply do not attempt to stay in touch otherwise and do not go to social events with them, which I’m sure everyone finds frustrating.”
Dr Teoh’s 12 March 2024 report also refers to the appellant’s relationship with his wife being “strained”.
Dr Modem’s 19 July 2024 report advises that the appellant “maintains very limited to no social connections” but the report also records no reported conflicts, disagreements or strains within the appellant’s familial and social networks. The appellant does lose his temper but his wife understands his frustration and is supportive. He has lost friends more in the context of his anxiety about leaving his house. As a result, the doctor places the applicant in Class 2 with mild social functioning limitations.
The Appeal Panel finds that the Medical Assessor has not engaged with the evidence in the appellant’s statement or the reports from Drs Teoh and Modem. The Appeal Panel considers this evidence to be ‘relevant and significant material’ which should have been considered by the Medical Assessor especially considering the lack of information that he obtained. He in fact did not record any commentary from the appellant directly regarding relationship strains, and he only considered the appellant’s relationships with his wife and son, rather than other family members and friends.
In those circumstances, the Appeal Panel again is unable to ascertain the Medical Assessor’s actual path of reasoning to his assessment pursuant to Class 1. Further, due to the lack of detail recorded by the Medical Assessor in the MAC, when compared with the detail in the appellant’s statement and the reports from Drs Teoh and Modem, the Appeal Panel also does not find the assessment of the Medical Assessor to be a mere difference of opinion about which reasonable minds may differ. The Appeal Panel therefore finds error in this regard.
Employability
In relation to this PIRS category, the Guidelines describe the following in Table 11.6:
“Class 3 - Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4 - Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5 - Totally impaired: Cannot work at all.”
The Medical Assessor placed the appellant in Class 3 and gave reasons:
“It is my opinion that there is moderate impairment. While he is unable to return to his previous occupation, this is primarily due to reduced concentration, which is assessed separately. Taking his remaining symptom burden into account, he will be able to work up to 20 hours per week in a less demanding environment.”
In the appellant’s 23 October 2024 statement, he advises that he has not worked for five years since leaving the employ of the respondent, that his “problems have not gotten better”, and that he cannot “see that I will ever be able to return to work in any meaningful capacity”. Dr Teoh also certifies him as not fit for work in the doctor’s 12 March 2024 report, and Dr Modem opines in his 19 July 2024 report:
“The array of symptoms he is currently grappling with extends across emotional, cognitive, and interpersonal domains, collectively posing a substantial challenge and impediment to his effectiveness at work. The convergence of these symptoms, which encompasses emotional distress, cognitive challenges, and persistent discomfort, paints a complex picture that markedly restricts his ability to execute job-related tasks efficiently. This intricate interplay of symptoms creates a multifaceted barrier, underscoring the depth and complexity of the challenges he faces in maintaining optimal work performance…The emotional strain he is enduring, coupled with cognitive challenges such as distractibility and forgetfulness, could impact his productivity and focus in a work/education/study setting…Considering the extensive reach of these symptoms and their interference across various aspects of his functioning, it seems unlikely that he could currently sustain regular work duties at an optimal level…Based on the available information, I would place him in class 5.”
The Medical Assessor however does not engage with this statement and medical evidence. It is ‘relevant and significant material’ which should have been considered by him, and his failure to do so makes it difficult to consider his Class 3 assessment as merely a difference of opinion about which reasonable minds may differ.
More significantly however, the Medical Assessor only takes into account the appellant’s “remaining symptom burden”, without including the appellant’s reduced concentration, in his assessment. He refuses to consider the appellant’s reduced concentration, as that “is assessed separately”. In the opinion of the Appeal Panel however, there is no justification for not including reduced concentration when assessing employability.
Reduced concentration is a symptom [emphasis added] which clearly has an effect upon capacity to work or employability. Indeed, the descriptions given to the various classes in the Guidelines specifically refer to working in a position which requires less skill (Class 3) and working in a position where pace is reduced (Class 4). A worker’s concentration level is highly relevant to these descriptions.
Further it is apparent from the MAC that the Medical Assessor also considered the appellant’s reduced concentration to be the primary reason for his inability to return to his previous occupation.
Reduced concentration is not conduct [emphasis added] requiring allocation to solely one PIRS category, in accordance with Ballas v Department of Education (NSW) [2020] NSWCA 86, such as seeing a friend.
While there is a PIRS category of ‘concentration, persistence and pace’, the descriptions given to the various classes for that category in the Guidelines include such conduct [emphasis added] as undertaking courses, reading, following instructions, adversity, and living independently.
There is no provision in the Guidelines to suggest that ‘concentration, persistence and pace’, being symptoms [emphasis added] rather than conduct [emphasis added], cannot be considered when assessing employability. Indeed (see paragraph 86 above), pace is specifically mentioned in the description given in Class 4 in the Guidelines regarding employability, and (in the opinion of the Appeal Panel) the need to consider concentration is implied in that and the other descriptions in the Guidelines.
The Appeal Panel therefore finds that it is an error for the Medical Assessor to consider that he should not have had regard to the appellant’s reduced concentration in his assessment of employability. As this error is readily apparent from an examination of the MAC (being specifically stated in it), the Appeal Panel finds it to be a demonstrable error in accordance with Merza and Mahenthirarasa.
Report of Dr Douglas Andrews
Having found the Medical Assessor to have erred, it is incumbent upon the Appeal Panel to re-assess the appellant in accordance with the relevant PIRS categories. As advised (see paragraphs 18-21 above), the Appeal Panel determined that the appellant required re-examination in this regard, and that all PIRS categories would be assessed in the re-examination (see paragraph 51 above).
The re-examination took place on 28 May 2025, and Dr Douglas Andrews has now reported to the Appeal Panel after that re-examination, as follows:
“1. The worker’s medical history, where it differs from previous records
Mr Abbott is a 50-year-old man who lives in Buxton with his wife Debbie. They have two adult sons, the eldest of whom lives in a granny flat on their property but will be moving to Brisbane in two weeks. They are estranged from the youngest, who lives in Brisbane, for reasons unrelated to Mr Abbott’s work injury. His wife works four days a week at Bunnings.
He started working for Brefni in March 2015 as a senior estimator/manager. From the beginning, there were high work demands and little opportunity for time off. Despite Mr Abbott’s success in bringing work to the company, he was poorly supported, discouraged from taking breaks, and threatened with dismissal if contracts weren’t secured. On reflection, he feels he was micromanaged, bullied, and harassed.
On 2 December 2019, he felt ill and unable to return to work. He has not worked in any capacity, paid or voluntary, since. He was nominally employed by Brefni until February 2022, when he was terminated.
2. Additional history since the MAC
Current treatment:
He is cared for by general practitioner Dr Neeraj Hathiramani, psychologist Ms Anne Mills, and psychiatrist Dr Mahendra Nepal. His current medications are fluoxetine 20 mg mane, mirtazapine 15 mg nocte, and quetiapine 25 mg as needed (he usually takes them three times daily). The use of quetiapine has increased since the Medical Assessor assessed him in February 2025.
He sees his psychologist every 4-6 weeks, usually by teleconference. He described her using CBT. He last saw his psychiatrist in March 2025; he has temporarily stopped because he cannot afford the gap payment. He has engaged with an online mental health program run by Beyond Blue. He meditates for 30 minutes twice daily using YouTube videos. He has never been admitted to hospital. Dr Nepal had suggested that he attend an anxiety program at Campbelltown, but he felt unable to travel to the venue for fear of running into ex-work colleagues.
General health:
Mr Abbott has Type 2 diabetes, hypertension and hyperlipidaemia. For these conditions, he takes metformin, telmisartan and rosuvastatin. He has obstructive sleep apnoea. In 2023, he was diagnosed with a cerebral aneurysm after routine investigations following the death of his younger brother from this condition. He has annual surveillance by a neurologist. He had been drinking alcohol excessively, 50-60 standard drinks weekly, until 18 months ago. He now drinks 5-8 standard drinks weekly, usually red wine. He is an ex-smoker and does not use illicit substances.
Current symptoms:
Mr Abbott’s mood varies daily, often depending on his sleep quality. He described feeling flat, without significant highs or lows. However, he said, ‘When I think about what happened and my future, it spirals’.
He has less motivation to be active.
He is pervasively anxious. He said, ‘I pick my fingers and scratch my arms until they bleed’. He is especially avoidant of going out for fear of running into ex-work colleagues. He is concerned that they will trigger his distress or that they will ‘treat me like they used to’.
He is irritable, frustrated and prone to anger. He is less inclined than he was to express his anger. Several times during the interview, he described his sense of shame about his circumstances.
He has subjective challenges with concentration, attention and memory.
He denied any thoughts of self-harm or suicide.
He has sleep disturbance with initial and middle insomnia. In part, this is due to intrusive thoughts about his obstructive sleep apnoea, which also impacts his sleep quality.
He has lost libido since starting medication, and there has been no intimacy in his relationship for the last 12-18 months.
His appetite is less, but his weight remains stable. At 110 kg and 175 cm, his BMI is 35.9, in the obese range.
Activities of daily living:
Mr Abbott rises early, at about 5am, unless he has slept poorly, in which case he may stay in bed until 9am or 10am.
He makes coffee and checks the list of chores that his wife has left. Some days he will attend to the tasks immediately, but often he procrastinates or neglects to do some of the chores. These may include housework, preliminary meal preparation or gardening tasks.
He spends one to two hours every day doing chores or working in the yard.
His home is built on three lots in Buxton, 1200 m², so there is ‘always something to do’. He is currently also working on expanding his driveway so that it may accommodate two cars side-by-side. He has removed all pavers and is preparing the subsurface. He said that these tasks are easy for him because he has a long history of DIY, he came from a family of builders and has an engineering background. He said that he is also working on building a native garden. He put in 2 hours yesterday and expects two tons of mulch today or tomorrow.
He is less attentive to his appearance. He brushes his teeth daily and showers every second or third day. Some days, he remains in his pyjamas.
He had an active social life before becoming unwell. Every Friday night, he and his wife visited friends or had them to their home. He had many friends on the Gold Coast but fewer in Buxton. He initially came to Buxton in 2015, and Debbie joined him 2 years later when they thought the job would work out. In Buxton, they often visited the bowls club or the RSL to see musicians or shows. Two or three times yearly, they travelled to Sydney to the theatre.
Mr Abbott no longer engages in these activities. He is anxious about going out in Buxton or the surrounding areas. He attended a wedding in January to support his wife, but spent half of it sitting in the car waiting for her. He last went to a café 3 weeks ago with Debbie while shopping. Visiting a café or restaurant is a rare occasion. Last year, he travelled to Mackay and Airlie Beach. He felt safer there, not fearing running into ex-work colleagues. He would not attend any social activities without Debbie.
They celebrate birthdays at home as a family.
His relationship with Debbie is strained, and they now sleep in separate bedrooms. Although he said that they were ‘living separately in the same house’, they still spend time together every day, share meals, go shopping together, and maintain their marriage. He described their marriage as solid, without risk of permanent separation, because they had made a promise to each other. There has been no domestic violence. He worries that his reduced activity disappoints her.
He is estranged from his parents and surviving brother, who live in the UK. This came about because they were angered that he did not send his brother's body to the UK after his brother died. He considered that that prerogative rested with his brother’s wife, who wanted a cremation.
He is also long estranged from his youngest son, unrelated to and predating the work injury. The boy left home at 16, and they no longer speak to him.
He can drive locally without support, but prefers to have Debbie with him. He last went on his own three weeks ago to attend his doctor, a 16 km drive from home. The furthest he has travelled from his home in the last 12 months was to the wedding, an 80-minute drive. When he travels without Debbie, he feels overwhelmed.
He has an extensive collection of movies, but chooses to watch shows he has seen before. He often loses focus, but feels that this doesn’t matter if he is familiar with the show. He previously enjoyed reading, but now struggles after 2 or 3 pages.
Mental state examination:
I examined Mr Abbott for 90 minutes via an audiovisual link to his home. The connection quality was adequate for a comprehensive assessment. He presented as an overweight man, casually attired in a jacket, bespectacled, and with an unkempt beard and hair.
He described his mood as flat and anxious. His affect was reactive, consistent with his mood and congruent with the interview content. He maintained composure.
He was cooperative during the interview. He gave a comprehensive history with occasional digressions into his work treatment or concerns about his financial situation.
There was no evidence of any disorder of thought, form or perception.
Diagnosis:
· Persistent depressive disorder with an ongoing major depressive episode and anxious distress.
Mr Abbott has had continuing symptoms of depression for more than 5 years, warranting a persistent depression diagnosis. He has seven of the nine symptoms described for a major depressive episode, missing psychomotor agitation or retardation, and recurrent thoughts of death.
Impairment:
Self-care and personal hygiene – Mr Abbott depends on his wife, who plans his daily activities and encourages him to be active. He neglects his appearance and is less attentive to hygiene. His contribution to household chores varies with the severity of his symptoms. He frequently misses meals. He has successfully moderated his alcohol consumption. Although he may help with preliminary meal preparation, his wife is responsible for most of it and does all the shopping. – Class 3.
Social and recreational activities – He has stopped being socially active. He rarely goes to a café and only does so with his wife. He no longer attends shows or concerts. Family celebrations are limited to the immediate family, his wife and one son. He attended a wedding earlier this year but kept to himself and spent much of it in his car. Eighteen months ago, he travelled to Mackay with his wife as they considered relocating. He has no plans for further such trips and said he would not have been able to do it without his wife. – Class 3.
Travel – Mr Abbott occasionally travels alone within the local area but is anxious about doing so. He has travelled further afield, for example to the wedding and to Mackay, but could not make the trip without his wife for support. – Class 2.
Social functioning – Mr Abbott’s relationship with Debbie is under strain. They sleep apart and have lost physical intimacy. There have been no periods of living apart, and Mr Abbott described his relationship as enduring. He is close to his eldest son and described the relationship as supportive. Estrangement with other family members is unrelated to his work injury. He has lost contact with friends. – Class 2.
Concentration, persistence and pace – Mr Abbott describes subjective problems with concentration and motivation. He watches television shows without close engagement and can only read 2 or 3 pages. On the other hand, he can work on projects in his home, such as expanding his driveway or building a native garden, for up to 2 hours daily. These projects require planning and application of knowledge. – Class 2.
Employability – Mr Abbott has not worked outside his home for 5 years. He is anxious about interacting with others and struggles to trust people. He does some work-like activities around the home, for example, his driveway project and garden building. These involve organisation, planning, physical labour and persistence at tasks. It is untested how he would fare in a structured work environment, but he could do less than twenty hours a fortnight, at a reduced pace and with less reliable attendance. – Class 4.
Summary:
Mr Abbott’s class ratings are sequentially 2, 2, 2, 3, 3 and 4; median 3, aggregate 16 - for a 17% permanent impairment.
3. Findings on clinical examination
Please refer to the mental state examination above.
4. Results of any additional investigations since the MAC
No additional investigations have been done.”
The Appeal Panel is satisfied with the report prepared by Dr Douglas Andrews, and it is also satisfied that the doctor’s re-examination of the appellant was conducted thoroughly, and that the doctor considered all ‘relevant and significant material’ in the ARD and the Reply. The information referred to in the report is exhaustive and refers specifically to the appellant. The report determines the medical dispute between the parties regarding the appellant’s assessments in accordance with the PIRS categories. The assessments in the report are in accordance with those categories. The doctor has used his clinical judgement in this regard.
In Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191, Ward P considered (at [88]):
“The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted Medical Assessor Glozier’s assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt Medical Assessor Glozier’s assessment (for the reasons contained therein).”
The Appeal Panel formally adopts the report prepared by Dr Douglas Andrews, and the findings and assessments contained in it. It is noted:
(a) in relation to the PIRS categories of social and recreational activities, social functioning, and employability (specifically raised by the appellant – see paragraph 37 above) – a higher class is found that the Medical Assessor found;
(b) in relation to the PIRS category of travel – a higher class is found than the Medical Assessor found;
(c) in relation to the PIRS category of concentration, persistence and pace – a lower class is found than the Medical Assessor found, and
(d) in relation to the PIRS category of self-care and personal hygiene – the same class is found as the Medical Assessor found.
The relevant PIRS Rating Form prepared from Dr Douglas Andrews’ report follows:
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
Name
Greg Abbott
Claim reference number (if known)
W28996/24
DOB
Age at time of injury
53 years
Date of Injury
2 December 2019
Occupation at time of injury
Estimating Manager
Date of Assessment
28 May 2025
Marital Status before injury
Married
Psychiatric diagnoses
1. Persistent depressive disorder with an ongoing major depressive episode and anxious distress
2.
3.
4.
Psychiatric treatment
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self care and personal hygiene
3
Mr Abbott depends on his wife, who plans his daily activities and encourages him to be active. He neglects his appearance and is less attentive to hygiene. His contribution to household chores varies with the severity of his symptoms. He frequently misses meals. He has successfully moderated his alcohol consumption. Although he may help with preliminary meal preparation, his wife is responsible for most of it and does all the shopping.
Social and recreational activities
3
He has stopped being socially active. He rarely goes to a café and only does so with his wife. He no longer attends shows or concerts. Family celebrations are limited to the immediate family, his wife and one son. He attended a wedding earlier this year but kept to himself and spent much of it in his car. Eighteen months ago, he travelled to Mackay with his wife as they considered relocating. He has no plans for further such trips and said he would not have been able to do it without his wife.
Travel
2
Mr Abbott occasionally travels alone within the local area but is anxious about doing so. He has travelled further afield, for example to the wedding and to Mackay, but could not make the trip without his wife for support.
Social functioning
2
Mr Abbott’s relationship with Debbie is under strain. They sleep apart and have lost physical intimacy. There have been no periods of living apart, and Mr Abbott described his relationship as enduring. He is close to his eldest son and described the relationship as supportive. Estrangement with other family members is unrelated to his work injury. He has lost contact with friends.
Concentration, persistence and pace
2
Mr Abbott describes subjective problems with concentration and motivation. He watches television shows without close engagement and can only read 2 or 3 pages. On the other hand, he can work on projects in his home, such as expanding his driveway or building a native garden, for up to 2 hours daily. These projects require planning and application of knowledge.
Employability
4
Mr Abbott has not worked outside his home for 5 years. He is anxious about interacting with others and struggles to trust people. He does some work-like activities around the home, for example, his driveway project and garden building. These involve organisation, planning, physical labour and persistence at tasks. It is untested how he would fare in a structured work environment, but he could do less than twenty hours a fortnight, at a reduced pace and with less reliable attendance.
Score
Median Class
2
2
2
3
3
4
= 3
Aggregate Score Impairment
Total
%
2+ 2
+ 2
+ 3
+ 3
+ 4
16
17%
For the above reasons, the Appeal Panel has determined that the MAC issued on 14 February 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W28996/24 |
Applicant: | Greg Abbott |
Respondent: | Brefni Corporate Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ankur Gupta and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric and psychological disorders | 2 December 2019 | Chapter 11 | 17 | nil | 17 | |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
14
0